“Identifying Congressional Overrides Should Not Be this Hard”

Very important Deborah Widiss piece (Texas Law Review See Also) on statutory overrides of the Supreme Court. Here is the abstract:

This paper is an invited response to Professor William N. Eskridge, Jr., and Mr. Matthew R. Christiansen’s recently-released study identifying and analyzing Congressional overrides of Supreme Court statutory interpretation decisions since 1967. Christiansen and Eskridge provide a new taxonomy for overrides that distinguishes between “restorative” overrides, which denounce a judicial interpretation as misrepresenting prior Congressional intent, and overrides that simply update or clarify policy. Although political science and legal scholarship has focused on the interbranch struggle implicit in restorative overrides, Christiansen and Eskridge classify only about 20% of the overrides in their total dataset as restorative.

Using the distinction between restorative and non-restorative overrides, I perform original data analysis comparing Christiansen and Eskridge’s results with a recent study of overrides by Professor Richard L. Hasen. Hasen, who found overrides primarily by searching Congressional committee reports, identified just 46 overrides since 1991. Christiansen and Eskridge supplemented legislative history research with a review of all court decisions on Westlaw that flagged a prior precedent as having been affected by subsequent statutory interpretation; they identified 120 overrides since 1991. I show that these different methodologies, one focusing on ex ante signals from Congress and one incorporating ex post analysis by courts, identify different “kinds” of overrides. Specifically, Hasen identified 73% of overrides that Christiansen and Eskridge classify as “restorative” but only 18% of non-restorative overrides. This finding suggests that Congress frequently may not consider the effect that large restructurings of statutory law have on judicial precedents.

Christiansen and Eskridge also report that, on average, it takes several years before any lower court flags an overridden precedent as superseded by statute. Again doing original data analysis, I determine that courts flag restorative overrides much more quickly than non-restorative overrides. This finding, which is counter to what one might expect based on political science scholarship, suggests that problems with implementation of overrides may often stem from information failures rather than willful resistance by courts. To make it easier to identify overrides, I suggest Congress should specifically reference precedents affected by statutory amendments in statutory language. In response to Christiansen and Eskridge’s finding that women and minority groups are frequently successful at obtaining overrides of narrow interpretations of civil rights statutes — a phenomenon they dub an “inversion of Carolene Products” — I note that courts then often hold more expansive understandings of equality to be unconstitutional.

I will also be co-authoring a response to Christiansen and Eskridge, building on Widiss’s important paper.